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Aqua Dots Product Liability Litigation

A must-read landmark decision from Judge Easterbrook in Aqua Dots Product Liability Litigation. The Chinese manufacturer of the Aqua Dots toy used the wrong adhesive in the product process; when swallowed, the adhesive metabolized into gamma-Hydroxybutyric acid, i.e., GHB, the so-called date-rape drug, with predictably adverse effects for the small children who did so.

The companies involved acted responsibly when they discovered the problem, and recalled the product, offering refunds and replacements.

There are of course legitimate personal injury claims that stem from a defective product like this. But there were also class actions seeking recovery for economic loss. What economic loss when the manufacturer is offering a refund or replacement? Well, that's a problem, isn't it, but lawyer-driven class actions often seek to free ride off of and take credit for what the manufacturer is already doing for the sake of justifying a large attorneys' fee: the attorneys in the similarly free-riding Mattel Lead Paint settlement asked for $12.9 million.

This will not fly in the Seventh Circuit now: "the district court should have relied on the text of Rule 23(a)(4), which says that a court may certify a class action only if 'the representative parties will fairly and adequately protect the interests of the class.' Plaintiffs want relief that duplicates a remedy that most buyers already have received, and that remains available to all members of the putative class. A representative who proposes that high transaction costs (notice and attorneys' fees) be incurred at the class members' expense to obtain a refund that already is on offer is not adequately protecting the class members' interests." It is good to see a court recognize that Rule 23(a)(4)'s adequacy requirement forbids class representatives from incurring socially wasteful litigation costs for the benefit of their attorneys at the expense of the class they represent. This will be an especially important principle in merger-and-acquisition strike suits.

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Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.